Friday, January 29, 2010

Is there a new epidemic going around? No, I am not referring to the swine (oops, I mean H1N1) flu! Instead, I am talking about the problem of how some criminal investigators persist in not taking video-taped confessions! Instead, some take the lazy way out by either taking oral statements, (and summarizing them in their reports), or by typing up a "confession" and getting the suspect to sign it!

In my opinion, there are no good excuses for such "lazy cop confessions." Put another way, there are no good excuses for every police department not having and using video (digital) camcorders to record every suspect's statement. In my opinion, jurors should (and do) expect the police to present to them a properly recorded statement, so that there is no guesswork as to exactly what the defendant said while in police custody.

In the alternative, the police should take an audio tape-recorded statement from a suspect. In this case, while the jury may not be able to see the defendant, at least they will be able to hear everything he or she said to the police.

Finally, if all else fails, then the police should, at the very least, allow a suspect to write out his or her own statement in their own handwriting. This method of recording statements is, in my opinion as a former career prosecutor, (and currently, as a criminal defense lawyer), far superior to a police detective writing, or typing, out a statement for the defendant to sign. And all these methods are superior to the "laziest" cop method of simply alleging that the defendant verbally confessed and that the detective was unable to record the confession by any other means. In most cases, this method will not pass the "smell test" of reliability!

The bottom line is that there are no good excuses for police departments not purchasing and using video camcorders to record confessions. Let's stop the epidemic and the bad practice of "lazy cop confessions!"

Monday, January 25, 2010

Did you hear that President Obama actually received a summons for jury duty?! I don't believe he will have much trouble getting out of serving on a jury in Chicago! Do you?! But you and I aren't presidents. How would you and I get out of jury duty? What are some legitimate excuses or reasons for avoiding, or getting out of, jury duty in Georgia? (I do NOT recommend that you stand, in the courtroom, and announce, "I see dead people!" That may get you out of jury duty, but it might get you in a padded room, too!)

First of all, let me emphasize that, if you possibly can, you should simply go and serve as a potential juror. You will probably enjoy it! Also, as I have heard one judge describe it, jury duty is one of the important ways in which we all can do our civic duty.

Second, it is critically important that, even if you have a legitimate excuse, you must follow the instructions from the clerk of court, which came with your jury summons, concerning how and when you may seek to be excused from jury service. I cannot emphasize enough that if you fail to follow these instructions, and simply fail to show up, the judge will likely send a marshal for you!

Here are some of the excuses which may help you get out of jury duty:

1. You are 70 or over;

2. You are a full-time student;

3. You have a written doctor's excuse; and

4. You are active duty military.

These are examples of excuses which may help you get out of jury duty. But again, it is important that you submit your excuse to the court! After all, you and I aren't presidents with the ready excuse that we are defending the free world!

Saturday, January 23, 2010

Years ago, my great grandfather left his farm in South Georgia to go to the State Capital in Atlanta. He was proud to be elected to serve in the state legislature. But after only one term, he quit in disgust. According to my grandmother, he was fed up with all the bribery and public corruption he witnessed in Atlanta. But have things really changed very much in the past century since my great grandfather went to Atlanta?

Without question, I believe there are many honest legislators in Atlanta today. But in the past five years, we have witnessed several top state public officials, including the former Senate Majority Leader and State School Superintendant, among others, go to federal prison. (I was involved in one of these prosecutions--I was the federal prosecutor who prosecuted former State Senator Charles Walker).

Such prosecutions may help in some small measure. But criminal prosecutions address only the symptoms. In my opinion, Georgia needs to go much further in order to stem the problem of public corruption. We need true ethics reform in Georgia. In particular, in my opinion, we need lobbying reform in this State, including strict limits on the amounts of gifts allowed by lobbyists to legislators. Such legislation has reportedly been introduced. It deserves our support -- and for good reason.

Presently, each year, lobbyists get in bed with legislators and "wine and dine them" with over a million dollars in total reported gifts. And you can't tell me that the lobbyists aren't expecting (and getting) something in return from some legislators! It often appears that lobbyists, not legislators, make the laws in this State. But now is the time to do something about it!

The recent fall from grace by State House Speaker Richardson should serve as a rallying cry for all those honest legislators, and others, who want to clean up this God-forsaken mess! Richardson, who recently resigned in disgrace, only after his wife publicly disclosed his alleged affair with a lobbyist, was literally plied with "wine, women, and song," to the tune of a total of more than $50,000.00 in (reported) lobbyists' gifts over the past four years. For example, lobbyists had reportedly flown him to Chicago and entertained him at Cubs baseball games, at no expense to Richardson. The crazy thing about all this is that, presently, this is all legal (and doesn't violate weak state ethics rules either)! Many of these practices may currently be legal, but, in my opinion, they are outrageous and out of control.

But all this can change! Please, get involved! Let's throw out the money changers and sweep the State Capital clean! Contact your legislators and let them know what you think! Also, contact citizens' watchdog groups, such as Common Cause of Georgia, and volunteer to help clean up this state! Until we have true ethics (and lobbying) reform in this state, we are doomed to repeat the current vicious cycle of public corruption trials and corrupt special interest politics. My great grandfather cannot go back to the State Legislature now. It's too late for him. But it's not too late for us and our children! We need not wait another century before we begin true ethics reform in this State!

Thursday, January 21, 2010

Credit card fraud, (along with identity theft and fraud), is a serious problem in this country. For instance, credit card companies reportedly post over half a billion dollars in fraud losses each year.

But not all crimes are the same. Some credit card fraud cases are more eggregious than others and it's not always based upon the amount of loss. For example, have you read the news reports about a Pennsylvania couple who have been charged with stealing and using the credit/debit cards from a 40 year old woman who died in their home on their couch?

Of course, at this point, it is important to emphasize that the husband and wife are merely charged, and that no one has been convicted. However, according to police and news reports, the couple allegedly went through the poor dying woman's purse while emergency personnel attended to her. If proven true, then don't you agree that this case is disgusting!?

As a former career prosecutor, (and currently, as a criminal defense attorney), I never cease to be amazed, (and disappointed), at the levels to which some people will stoop. Stealing from dead people? How low can you go? Have you ever heard of similar cases involving thefts from deceased victims?

Monday, January 18, 2010

What is your opinion? Do television shows, such as "Law and Order-S.V.U.," influence how "real people" view our criminal justice system? I believe they do and here's why.

Most people rarely have any contact with the courts, police, or lawyers. Therefore, when they occasionally must interact with "the system," they must draw upon the impressions which they have formed about cops or lawyers from television, or the movies. I also believe that true crime trial dramas, beginning with the televised O.J. Simpson murder case, (coupled with fictitious t.v. crime dramas), have also had a profound impact on what jurors expect when they are selected to serve on juries. For instance, in my experience, both as a prosecutor and a criminal defense lawyer, jurors chosen in criminal cases expect to be entertained with "C.S.I." caliber scientific evidence, just like they have seen on t.v.

Don't you agree? If you regularly watch "Law and Order-S.V.U.," don't you expect real criminal investigators to solve crimes just like the character portrayed by award-winning actor Marisa Hargitay? Of course, at least in real jury trials, there are no interruptions for commercials!

Tuesday, January 12, 2010

In the last post, I discussed the pretrial diversion program, which is an available alternative to prosecution in the federal court system. In this post, I want to tell you a "war story" about a time I agreed to a defense lawyer's entreaties to afford his client this lenient alternative to prosecution. You be the prosecutor! You decide whether or not you would have done the same! Here are the facts:

The Department of Justice has well-publicized guidelines concerning which cases should qualify for pretrial diversion. As you would imagine, the cases should generally be very minor, non-violent crimes by first offenders. Once, years ago, as a young federal prosecutor, I was prosecuting a woman, easily in her mid-sixties, who was a local bank president, for embezzling bank funds. In particular, she was giving herself some unauthorized "extra" interest on some of her personal savings accounts. To me, it was a routine criminal case for which this defendant needed to "do some time," and also to serve as an example to others.

But then, I got a telephone call from her criminal defense attorney. He and I had worked together previously when we were both employed together at the district attorney's office. I trusted him implicitly to tell me the truth. The criminal defense lawyer proceeded to tell me that he was worried about this client possibly taking her life. He went on to explain that, in the past year, she had lost her husband and had fought her own battle against cancer. He also described other ordeals she had endured which I won't go into here. (And I have changed some of the facts here, too, but the essential facts remain). Her attorney seemed genuinely concerned about what she might do if she was prosecuted and sentenced to prison.

Here is the decision I made: After careful consultation with others, including my case agent, I agreed to give this defendant pretrial diversion, in lieu of prosecution. Ordinarily, since she was a bank executive, I wouldn't have considered it. But looking back, I am glad I did it. I became convinced that she might not make it to prison and, frankly, I had better things to do than to kill this older woman! So, if I erred, at least I erred on the side of life! What do you think? Was I too lenient? Was I hoodwinked? What would you have done if you were the prosecutor?

As another point, I am sure you will agree that prosecutors, when exercising prosecutorial discretion, should try to be be consistent from case to case, (but, at the same time, they must also consider the unique facts of each case). Should it matter that she was older and had suffered several serious tragedies in her life?

As a post script, when I informed the defense attorney about my decision, I also teased with him a bit and made him promise not to broadcast to the local criminal defense bar that I was a wimp! Instead, I told him that I expected him to tell everyone what a tough prosecutor I was!

Monday, January 11, 2010

The availability of pretrial diversion is an example of one advantage which the federal criminal justice system has over the Georgia, (state), criminal justice system. In other words, as a former federal prosecutor, I was able to "divert" some appropriate cases out of the criminal justice system through pretrial diversion. This alternative is unavailable to state prosecutors in Georgia. First offender probation is the closest alternative available to state prosecutors, but it requires going to court, getting sentenced by a judge, and serving a probationary sentence before the slate is "wiped clean."With pretrial diversion, on the other hand, the defendant never goes to court. Instead, the defendant, who has no criminal record, (and who has committed a minor white collar offense), and his or her criminal defense lawyer, must simply sign a pretrial diversion agreement in which the defendant generally agrees to make restitution and perhaps do some community service. As long as they abide by the agreement, they can avoid prosecution. As a federal prosecutor, I generally used pretrial diversion in minor cases involving a simple, one-time theft, e.g. by a bank teller.Generally, maybe it is true that the states can't learn much from the feds! But don't you agree that the states should at least copy the federal government by allowing pretrial diversion as another sentencing alternative?

Thursday, January 7, 2010

There aren't a lot of hot news items today about criminal law "out there," so why don't we have a quick tutorial about the burdens of proof at trial. (Are you asleep yet?!) Do you know the difference in the burden of proof borne by the state in a criminal case, as opposed to the burden of proof borne by a plaintiff in a civil case? In a criminal case, the burden, (or required standard), of proof is "beyond a reasonable doubt." In other words, in a criminal case, the state bears the heavy burden of proving the defendant's guilt, (as to each essential element of the crime charged), beyond a reasonable doubt. Now, this really is a very heavy burden, (as it should be, because the government is attempting to lock up one of its citizens). But this doesn't mean that the state must prove the defendant's guilt in a criminal case to a mathematical certainty. Reasonable certainty, (or removal of all reasonable doubt), is all that is required. (As a practical matter, at a criminal trial, that's about all that a Georgia judge will instruct a jury about concerning the burden of proof. The courts will otherwise leave it up to the jury to decide what "beyond a reasonable doubt" really means!)

In a civil case, on the other hand, the burden of proof is much lighter. The burden in a civil case is "by a mere preponderance" of the evidence. In other words, at a civil trial, looking at the scales of justice photo above, a party may win simply by having the scales weighed down, (in their favor), with one additional grain of sand. Simply put, that is all a "preponderance" means. But again, in a criminal case, the scales must be weighed heavily in favor of the state, in order for the state to win.

So, there! This tutorial about burdens of proof wasn't so bad, was it? And maybe next time, we can hope for some hot criminal law news topics, can't we?! Okay, you can wake up now!

Monday, January 4, 2010

When I first started out as an attorney, courthouse security was virtually non-existent. There were no courthouse metal detectors or armed courtroom bailiffs back then. I'll never forget one kind, elderly bailiff who "guarded" the grand jury room in one South Georgia courthouse where I was an Assistant D.A. Bless his heart! If any disturbance had occurred, this bailiff surely would never have heard it.

Were those kinder, gentler times? And were judges and courthouses more safe and secure back then? Or were we just more naive back then about the dangers? Maybe it was some of both.

But times have certainly changed now! And not for the better! Did you hear the tragic news of yet another courthouse shooting this morning at a federal courthouse in Las Vegas? Sadly, it appears that a court security guard was killed and a deputy marshal was injured by a lone gunman. Of course, you probably also remember the 2005 Brian Nichols shooting incident at an Atlanta courthouse in which Nichols, a prisoner, grabbed a deputy's gun, killed the judge, and then continued his shooting spree until his re-capture a couple of days later.

Doesn't it seem that the number of such courthouse shooting incidents continues to rise? And to top it off, a new Department of Justice report released today indicates that the number of threats against judges and prosecutors has doubled in the past six years.

I don't mean to suggest that these are additional signs that our society is necessarily "going to Hell in a handbasket." But I do believe that these are signs that we are becoming a more violent society and that more metal detectors and security guards alone are insufficient to "fix" our society's problems. Don't you agree? What are some possible solutions? What do you think?

About Me

We are father and son attorneys who enjoy practicing law together in Martinez, Georgia, near Augusta. Richard H. Goolsby, Sr. is a former federal prosecutor in Augusta who has tried some of the largest, most complex cases in Georgia history. Please also visit our law firm's website: www.goolsbylawfirm.com
or email us at: rgoolsby@goolsbylawfirm.com